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Explained: Why Maharashtra BJP MLAs’ one-year suspension was ‘illegal and irrational’

The Supreme Court has set aside the one-year suspension of 12 BJP MLAs from the Maharashtra Legislative Assembly. What was the plea before the court, and what did the two sides argue? What happens now?

Written by Sadaf Modak , Edited by Explained Desk | Mumbai |
Updated: January 31, 2022 8:39:55 am
BJP MLAs hold a “counter Assembly” to protest the suspensions on the premises of the Maharashtra legislature in July 2021. (File Photo)

The Supreme Court on Friday set aside the one-year suspension of 12 BJP MLAs from the Maharashtra Legislative Assembly while observing that the decision to suspend them for a year was ‘unconstitutional, substantively illegal and irrational’. In its 90-page order, the court said that the 12 MLAs are entitled to all consequential benefits of being members of the Assembly on and after the session in July 2021 ended.

What was the plea before the Supreme Court?

On July 5, 2021, soon after the Assembly met for its two-day monsoon session, there was commotion as Leader of Opposition Devendra Fadnavis (BJP) objected to an attempt by state minister Chhagan Bhujbal (NCP) to table a resolution demanding that the Centre release data on Other Backward Classes (OBCs), so that seats could be reserved for them in local bodies in Maharashtra. Several BJP MLAs entered the well in protest, snatched the mace, and uprooted mics. Shiv Sena MLA Bhaskar Jadhav, who was in the chair, adjourned the House for 10 minutes, following which some BJP MLAs allegedly entered his chamber and threatened, abused, and misbehaved with him.

The Maharashtra House has not had a Speaker since Nana Patole of the Congress resigned in February 2021, and Jadhav was one of four presiding officers named by Acting Speaker Narhari Zirwal the previous day. The data on the population of OBCs is a political hot button, and the Centre has told the Supreme Court that data on OBCs collected during the Socio-Economic Caste Census (SECC) of 2011 is erroneous and unusable.

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Maharashtra Parliamentary Affairs Minister Anil Parab subsequently moved a resolution to suspend 12 BJP MLAs — Sanjay Kute, Ashish Shelar, Abhimanyu Pawar, Girish Mahajan, Atul Bhatkhalkar, Parag Alavani, Harish Pimpale, Yogesh Sagar, Jaikumar Rawal, Narayan Kuche, Ram Satpute and Bunty Bhangdia — for a year.

The MLAs filed a writ petition in the Supreme Court last year against the Maharashtra Legislative Assembly and the State of Maharashtra and asked for the suspension to be quashed.

What had both sides argued?

On behalf of the 12 BJP MLAs, it was submitted that their suspension is “grossly arbitrary and disproportionate”. The challenge relied mainly on grounds of denial of the principles of natural justice, and of violation of laid-down procedure. They said that they were not given an opportunity to present their case and that the suspension violated their fundamental right to equality before the law under Article 14 of the Constitution. They also submitted that they were not given access to video of the proceedings of the House, and it was not clear how they had been identified in the large crowd that had gathered in the chamber.

The MLAs have also contended that under Rule 53 of the Maharashtra Legislative Assembly Rules, the power to suspend can only be exercised by the Speaker, and it cannot be put to vote in a resolution as was done in this case.

Rule 53 states that the “Speaker may direct any member who refuses to obey his decision, or whose conduct is, in his opinion, grossly disorderly, to withdraw immediately from the Assembly”. The member must “absent himself during the remainder of the day’s meeting”.

The Maharashtra Legislative Assembly and the state, who were named as respondents in the case, had submitted that the action was taken due to “undisciplined and unbecoming behaviour” of the MLAs. It was argued that that House had acted within its legislative competence, and that under Article 212, courts do not have jurisdiction to inquire into the proceedings of the legislature. Article 212 (1) states that “the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure”.

The state had also said that a seat does not automatically become vacant if the member does not attend the House for 60 days but it becomes vacant only if declared so by the House. It was submitted that the House is not obligated to declare such a seat vacant.

What did the court say about members being suspended beyond an ongoing session?

The court agreed with the MLAs’ contention that the suspension has to follow the procedure laid down in Rule 53. It said that the suspension of a member must be preferred as a short term or a temporary, disciplinary measure for restoring order in the Assembly. Anything in excess of that would be irrational suspension, the court said. It said that Rule 53 only provides for the withdrawal of a member for the remainder of the day or in case of repeat misconduct in the same session, for the remainder of the session.

The court said that as per this rule, withdrawal of a member can only be done in case of the member’s conduct being “grossly disorderly”. It relied on definitions of the two words and said that the conduct has to be considered in a graded objective manner. It is not a punishment like expulsion but more a direction to ensure that the business of the House can be carried on smoothly, without any disruption. It termed the one-year suspension worse than expulsion or disqualification or resignation as far as the rights of the constituency to be represented in the House are concerned.

It also said that suspension beyond the ongoing session is violative of basic democratic values as it would mean the constituency the member represents in the House would remain unrepresented. It said that it would also impact the democratic setup. It said that a thin majority coalition government could use such suspensions to manipulate the number of Opposition party members and that Opposition will not be able to effectively participate in discussions/debates in the House fearing suspension of its members for a longer period.

It also considered whether the legislature had complete immunity from judicial review in matters of irregularity of procedure. It ruled that procedures are open to judicial review on the touchstone of being unconstitutional, grossly illegal, irrational or arbitrary.

Can members be suspended beyond the remainder of the session?

The bench referred to Article 190 (4) of the Constitution, which says, “If for a period of sixty days a member of a House of the Legislature of a State is without permission of the House absent from all meetings thereof, the House may declare his seat vacant.”

Under Section 151 (A) of The Representation of the People Act, 1951, “a bye-election for filling any vacancy… [in the House] shall be held within a period of six months from the date of the occurrence of the vacancy”. This means that barring exceptions specified under this section, no constituency can remain without a representative for more than six months. It said that anything in excess of that would be irrational suspension entailing deprivation of the constituency from being represented in the House.

The court said that exceeding the stated timeline as per the Rules for withdrawal of members is a substantive matter. It said that it raises the question as to what purpose does it serve to withdraw a member from the House for successive sessions within the one-year period. It said further that if the conduct of a member is gross, warranting his removal from the Assembly for a longer period, the House can invoke its inherent power of expulsion.

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Like Rule 53 in the Maharashtra Legislative Assembly, are there similar rules for Parliament and other state assemblies?

Rules 373, 374, and 374A of the Rules of Procedure and Conduct of Business in Lok Sabha provide for the withdrawal of a member whose conduct is “grossly disorderly”, and suspension of one who abuses the rules of the House or willfully obstructs its business.

The maximum suspension as per these Rules is “for five consecutive sittings or the remainder of the session, whichever is less”.

The maximum suspension for Rajya Sabha under Rules 255 and 256 also does not exceed the remainder of the session. Several recent suspensions of members have not continued beyond the session.

Similar rules also are in place for state legislative assemblies and councils which prescribe a maximum suspension not exceeding the remainder of the session.

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